NFL And NCAA Under Increased Pressure To Manage The Long-Term Effects Of Concussions

In August, 2013, the NFL announced that it had reached a $765 million dollar settlement of claims by more than 4,500 players alleging that they were suffering from long-term consequences of concussions that the NFL had known about for years, hid from players, and failed to minimize by establishing appropriate protocols for return to play. The alleged cover-up by the NFL, with co-conspirators in the medical community, was recently the subject of an extensively researched PBS Frontline special titled “League of Denial.”

By settling the players’ claims early in the litigation it appeared that the league would avoid further examination of what the league knew and when it knew about the long-term effects of concussion. However, several recent developments indicate that these issues will likely be examined further. The judge overseeing the litigation has appointed a “special master” to make recommendations concerning the settlement and the Brain Injury Association of America has petitioned to intervene in the litigation to make sure that the settlement takes proper account of the

“progressive physical, psychiatric and cognitive disease processes that are caused and/or accelerated by brain injury, but may not manifest in clinically significant symptoms on initial presentation.”

Many players are expected to opt out of the NFL concussion settlement and pursue their own claims. One particularly significant claim was recently filed by former players of the Missouri Chiefs against the Chiefs. Missouri law makes it unlikely that these claims will be dismissed on technical grounds, so an examination of the NFL’s past knowledge is more likely. Unfortunately even that case may restrict an examination of facts after 1994, which is the effective date of a federally recognized collective bargaining agreement for players. As addressed in the Frontline piece, the bulk of the NFL’s alleged efforts to deny reality and avoid the truth about concussion risks came under the auspices of the NFL’s Mild Traumatic Brain Injury Committee, which was formed in 1994.

Much of the recent attention to the long-term effects of concussion in sports arose out of the work of the Boston University Center for the Study of Traumatic Encephalopathy. Physicians at BU have examined the brains of a large number of deceased players and in almost all of those players have found a neurodegenerative disease marked by widespread accumulation of hyperphosphorylated tau, known as Chronic Traumatic Encephalopathy (CTE).

In 2013 the American Academy of Neurology published a study of the clinical presentation of the players who were later found to have CTE. The study found two different clinical presentations, one initially featuring behavior/mood symptoms and the other initially featuring cognitive impairments. The behavior group manifested physically and verbally violent behavior and greater depression than the cognition group. In explaining the evolving symptoms seen in these players, the study notes that

One of authors of the 2013 American Academy of Neurology study is Robert Cantu, M.D., co-director of the Boston University Center. Dr. Cantu recently prepared an impressive 95-page report on the present state of knowledge concerning sports concussions, which was submitted to the Court in connection with a pending class action claim against the National Collegiate Athletic Association. Included in Dr. Cantu’s affidavit is a review of several published clinical practice guidelines and position statements concerning the diagnosis, treatment and management of mild traumatic brain injury/concussion in sports – guidelines representing the best current scientific knowledge.

Dr. Cantu observes that the NCAA has failed to make use of this information to protect the safety and wellbeing of NCAA players. During 2013, three new guidelines were produced by the American Medical Society for Sports Medicine, the American Academy of Neurology and the Zurich Consensus working group. The key provisions in these guidelines were reviewed in an article in October 2013 in the Journal of Neurotrauma.

Organizations managing sports programs, especially involving collision sports, have a duty to follow these new developments and implement protocols that minimize the risk to athletes.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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